Where there’s a Will, there’s a Way

Because of their importance and legal consequences, there have always been strict rules in place with respect to not only how a Last Will and Testament is to be prepared, but also as to how it is to be executed.  These strict obligations are put in place to guard against fraud and to also ensure that potential beneficiaries can have clarity as to what the Will maker intended.

And while the Succession Act is generally unrelenting in its requirements for a Will to be a legal document, in exceptional circumstances, a non-compliant Will can still be made valid if a Court declares it to be so.

In a rather extreme example, the Queensland Supreme Court recently admitted to Probate a “Will” that was written on an iphone.  The Will maker was a gentleman who intended to commit suicide and shortly before he did so he drew up some documents on his iphone that included a document which was said to be his Last Will and Testament.  It was not executed in accordance with the ordinary requirements of the Succession Act and was presumed to be invalid, but Justice Lyons of the Queensland Supreme Court found that the document should be a valid Will.  This finding was because it met the statutory requirements under Section 18 of the Act because it otherwise complied with all of the usual requirements of nominating an Executor and alternate Executor and then setting out how his estate was to be distributed.

Whilst the case is a rather extreme example, it does demonstrate that Courts will bend over backwards to attempt to ensure that the wishes of a deceased are complied with.  Regrettably, in the case before Justice Lyons, it became a rather expensive exercise to have the Will declared a valid one so preparing “Wills” on an iphone is certainly not recommended!  A properly prepared and executed Will does certainly go a long way to reducing the cost of administering an estate and will provide peace of mind to the Will maker, knowing that they can feel confident that their wishes will be carried into effect.

Travis Schultz Managing Partner Schultz Toomey O’Brien Ph: (07) 5413 8900 Fax: (07) 5413 8958

Informal Wills

By Trent Wakerley

In a recent Supreme Court of Queensland decision, the Court declared a document typed and saved on the late Mr Yu’s iPhone to be a valid Will.

An Application to the Court was required because the document on the iPhone did not comply with the requirements for the execution of a valid Will referred to in the Succession Act 1981 (QLD) (“the Act”).

The Act provides that a Will must be in writing and signed by the person making the Will (or someone else who the Will-maker directs to sign the document on their behalf).

There must also be at least two (2) witnesses who also sign the Will in the presence of the Will-maker and the signature of the Will-maker must be made with the intention of executing the Will.

The Act enables the Court to dispense with the formal requirements if the Court is satisfied that:-

  1. A document exists;
  2. The document purports to state the testamentary intentions of the deceased; and
  3. The deceased intended the document to operate as the deceased’s Will.

There are a number of Queensland Court decisions where Orders have been made dispensing with the formal requirements for executing a Will under the Act and declaring a document to be the deceased’s last Will.

These types of Applications often relate to unfortunate circumstances where the Will-maker has realised they do not have a valid Will in place that reflects their wishes and have handwritten their intentions on a document (or in the case of Mr Yu, on an iPhone) shortly before taking their own life.

Other circumstances where these types of Applications have been made are where the deceased:-

  1. had met with a solicitor and provided their instructions regarding their Will and had signed the solicitor’s notes but not the final “Will” before passing away; or
  2. had been provided with an unsigned Will by their solicitor which reflected the instructions provided at the appointment but had not signed the “Will” before passing away.

Whether the Court orders that the formal requirements for the execution of a Will be dispensed with will depend on the particular circumstances of each case.  There have been a number of Applications to the Court for the formal requirements to be dispensed with that have not been successful.

In these types of Applications, a significant amount of time and work is required to collate the evidence to put before the Court and the costs associated with these types of Applications can easily be in the tens of thousands of dollars.

These type of Applications can be easily avoided if you have an up to date valid Will in place which reflects your current wishes.

If you require a Will or need your Will updated you can contact our team today.


Considering a DIY Will Kit?

Wills & Estate PlanningThere are plenty of online resources these days where you can buy a Do-It-Yourself (DIY) Legal Will Kit and they will be a very minimal expense to you in the short term. However, you may want to consider the possibility of the additional costs that maybe incurred if your Will isn’t completed correctly and your executor is left with trying to sort it out.

Therefore in saying this, it is important to consider the following:

  • Read the instructions carefully. All Will kits come with instructions but there are numerous cases where the Will testator has not appointed an executor, fails to properly describe gifts, fails to make a gift over and in particular, fails to properly sign the Will.
  • In Queensland, a Will must be signed by the testator (the person that has made the will) and at least two witnesses.  The two witnesses must both be present at the time the testator signs the Will. So you need to make sure the documents are signed and dated correctly.
  • Avoid appointing an executor that maybe of the same or similar age to you and may pass away before you.
  • Ensure your bank account details are up to date.
  • Make sure all wording is legible and not confusing. Without clear instructions this could cause problems with determining what your wishes are for your estate.

We would highly recommend consulting with a legal professional when preparing your Will. For a small fee and that extra piece of mind, it is worth speaking with someone who knows about Wills and Estate Planning. Contact us today.